FBI
director James Comey may be under investigation for Hatch Act
violation
Office
of Special Counsel received complaint against Comey and says ‘in
general’ it opens cases into allegations of interfering with
elections
Spencer Ackerman
Monday 31 October
2016 17.27 GMT
By publicly
discussing a renewed investigative focus on Hillary Clinton, the FBI
director, James Comey, has placed himself in the crosshairs of a
federal inquiry into whether he has interfered in an election, the
Guardian has learned.
The Office of
Special Counsel (OSC), an independent federal investigative agency,
cited longstanding policy in neither confirming nor denying any the
existence of investigation into Comey for violating the Hatch Act, a
law designed to prevent federal officeholders from abusing their
power to influence an election.
But on Saturday,
Richard Painter, a former ethics lawyer in George W Bush’s White
House, filed an official complaint against Comey with the office, and
then disclosed it in an op-ed.
“In general, OSC
opens a case after receiving a complaint,” said spokesman Nick
Schwellenbach, who would not comment specifically on Comey.
Such investigations
can take anywhere from days to months, depending on the complexity of
the circumstances.
Comey’s Friday
letter to Congress, which said the FBI was examining newly discovered
information for potential relevance to Clinton’s use of a private
email server, which contained classified information, has placed a
widely respected FBI director in extraordinary political jeopardy.
Should the OSC find
Comey to have violated the Hatch Act, the relevant law determining
any potential punishment for a Senate-confirmed presidential
appointee – such as Comey – places authority for that decision
with the president. Should Clinton win the presidency, she may find
herself in a position to determine what the law calls “appropriate
action” for an FBI director who is slated to serve until 2023.
In recent years, the
OSC has cited two cabinet-level Obama administration appointees,
health and human services secretary Kathleen Sebelius and housing and
urban development secretary Julian Castro, for Hatch Act violations.
Neither finding ended their tenures. Castro remains in his post and
Sebelius served for two more years before stepping down.
The likely Hatch Act
investigation adds to a swarm of headaches for Comey, who awoke on
Monday to repudiation from former allies.
Eric Holder, the
former attorney general who worked beside Comey at the beginning of
his time as FBI director, wrote a public rebuke in the Washington
Post, warning that Comey had jeopardized “public trust in both the
Justice Department and the FBI”.
Holder criticized
Comey for high-profile interventions in the election, first through
his July press conference recommending against indicting Clinton, and
now through casting “public suspicion” on her.
“It is incumbent
upon him – or the leadership of the department – to dispel the
uncertainty he has created before Election Day,” Holder wrote.
Holder also joined
nearly 100 former federal prosecutors in blasting Comey for inviting
“considerable, uninformed public speculation” about the Clinton
case before establishing, by the FBI director’s admission,
investigative relevance. The letter, circulated by the Clinton
campaign, refrained from characterizing Comey’s motivations but
said he had compromised the “non-partisan traditions” of the
department and the FBI.
Comey informed
Congress of the renewed FBI attention on Clinton before obtaining a
warrant, which the FBI now possesses, to search for ties to Clinton’s
private email server on electronic communications found on a laptop
shared by Clinton aide Huma Abedin and her estranged husband,
disgraced congressman Anthony Weiner. Over the weekend, justice
department officials began leaking that the US attorney general,
Loretta Lynch, had advised Comey against going public with the
potential connection.
The Clinton campaign
and the Democratic establishment have unloaded on Comey, months after
praising him for declining an indictment recommendation. Four
powerful senators, all of whom are likely to become committee chairs
should the Democrats win the chamber next week, have demanded a
briefing from Comey on the Clinton saga by the end of Monday, though
it is unclear if the director will provide one. The Senate’s top
Democrat, Harry Reid, openly accused Comey of breaking the law to
help elect Donald Trump.
The FBI learned of a
potential connection to the Clinton server weeks ago, after opening
an investigation into Weiner allegedly sending messages of a sexual
nature to an underage girl.
Comey’s allies
contend he is caught in an impossible position. To stay silent before
an election in the face of potentially significant developments in
the Clinton case would invite a torrent of Republican congressional
hearings. To speak publicly of an explosive investigation,
particularly before establishing relevance, is to insert the FBI into
the election days before the vote.
“It’s really,
right now, it’s a no-win situation,” said Ed Shaw, who in 2014
retired from the FBI after a 25-year career. “He’s made everybody
mad at him.”
Only once in the
FBI’s 100-plus year history has a president fired a director. Bill
Clinton, husband of the Democratic presidential nominee, fired
William S Sessions in 1993, after Sessions faced rebuke on ethics
charges and abusing government funds. Bill Clinton went on to have a
tumultuous relationship with the man he chose to replace Sessions,
Louis Freeh, whose FBI investigated the president.
Shaw believed Comey
could survive the intensifying political firestorm, owing to his
10-year term, but said the FBI would start off a potential Clinton
administration in a difficult position.
“I don’t think
any government bureaucracy wants to find itself in this kind of a
situation as an institution,” he said.
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